2019 (5) TMI 714 - AT - Central Excise

Valuation - clearance to sister unit as well as independent buyer - case of the department is that even in case of clearances made to their sister concern, the price charged to independent un-related buyer shall be adopted for payment of duty in respect of clearances made to related sister concern - HELD THAT - The entire demand was confirmed relying on the Larger Bench judgment in the case of ISPAT INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., RAIGAD 2007 (2) TMI 5 - CESTAT, MUMBAI according to which if the goods are cleared to independent un-related buyer as well as related buyer in such case the price charge to un-related buyer shall be adopted in the case of clearances made to related buyer, accordingly, valuation in terms of Rule 8 was not applied. However, subsequent to passing of the impugned order, there are vital challenges of circumstances i.e. the Rule 8 was amended vide Notification No. 14/13-CE (NT) dated 22.11.2013 and by taking cognizance of Circular, the Tribunal has passed the decision in the case of M/S ULTRATECH CEMENT LIMITED VERSUS CCE ST, INDORE/ RAIPUR 2017 (11) TMI 1385 - CESTAT NEW DELHI . In view of the fact that so much change have taken placed subsequent to the passing of the order, therefore, the matter needs a fresh look on all subsequent development. Appeal allowed by way of remand.

Summary

Issues involved: Valuation of goods for payment of duty in case of clearances made to related sister concern, applicability of Rule 8 of Central Excise Valuation Rules, 2000, demand for extended period, interpretation of valuation provision, sustainability of demand, reliance on Board Circular, binding nature of Board Circular, revenue neutrality, suppression of fact, remand to adjudicating authority.

In the present case, the issue revolved around the valuation of goods for payment of duty in the scenario where clearances were made to a related sister concern at a lower price compared to independent buyers. The appellant contended that despite clearances to independent buyers, the valuation for related persons should be done in accordance with Rule 8 of Central Excise Valuation Rules, 2000. The appellant relied on various judgments, including Ultratech Cement Ltd and Surya Roshni Ltd, to support their argument that the demand for differential duty was not sustainable. Additionally, the appellant argued that the excise duty paid was available as cenvat credit to their sister concern, making the case revenue neutral. The appellant also challenged the invocation of the extended period for demanding duty, emphasizing that there was no suppression of fact as the goods were cleared on payment of duty. The appellant cited several judgments to support their contentions regarding the extended period demand.

On the other hand, the Revenue reiterated the findings of the impugned order, citing judgments like Handy Wires Pvt. Ltd and Rado Tyres Ltd. However, the Tribunal noted that subsequent to the impugned order, significant changes had taken place, including the amendment of Rule 8 via Notification No. 14/13-CE (NT) dated 22.11.2013 and the issuance of a Board Circular dated 25.11.2013. Considering these developments, the Tribunal found that a fresh look at the matter was necessary. Consequently, the impugned order was set aside, and the case was remanded to the adjudicating authority for a fresh decision, taking into account the amended rule, the Board Circular, and the relevant judgments. All issues were kept open, and the appeals were allowed by way of remand to the adjudicating authority.